On July 7, 2011, the N.B. Court of Appeal confirmed that in an “inherently dangerous” workplace, an employer can adopt a policy requiring mandatory random alcohol testing of employees in safety sensitive positions by breathalyser without first proving there is an existing alcohol problem in the workplace.

In Irving Pulp & Paper, Limited v. Communications, Energy and Paperworkers Union of Canada, Local 30, the employer unilaterally introduced a drug and alcohol policy mandating unannounced random alcohol testing of employees in safety sensitive positions in its kraft mill. One unionized employee who was randomly tested under the policy grieved on the basis the employer lacked the power to mandate random alcohol testing for unionized employees, and succeeded at arbitration. The Arbitration Board found the employer was required to prove the following to justify its unilateral introduction of the policy:

(1) the policy is justified either because the work environment was “ultra-dangerous” or had a “significant” existing alcohol problem; and

(2) the policy is reasonable because the form of testing minimally intrudes on employee privacy.

The Board decided the policy was not justified because the work environment was not “ultra-dangerous” and there was no evidence of a “significant” alcohol problem at the workplace. Thus, the Board found in the union’s favour.

The employer successfully challenged the Board’s decision in the N.B. Court of Queen’s Bench. On September 20, 2010 the Queen’s Bench Court decided the Board’s decision was unreasonable, and quashed it, upholding the random alcohol testing provisions of the employer’s policy. Noting that there is no threshold of “ultra-dangerous”, but instead that “dangerous is dangerous”, the Court found:

(1) the policy is justified: the employer’s workplace is inherently dangerous because there is a risk a catastrophic accident could occur, and thus the employer did not have to prove there was a significant existing alcohol problem; and

(2) the policy’s random alcohol testing provision is reasonable: it is a proportionate response to the potential danger because the form of testing (breathalyser) minimally intrudes on employee privacy, and it applies only to those in safety sensitive positions.

The union’s appeal of the Court of Queen’s Bench decision to the N.B. Court of Appeal failed. On July 7, 2011 the N.B. Court of Appeal upheld the Queen’s Bench Court’s decision that the employer could mandate random alcohol testing. Explicitly stating its goal was to provide certainty on the law of mandatory random alcohol testing in New Brunswick in light of inconsistent arbitration decisions, the Court of Appeal held (at paragraph 8):

[M]andatory random alcohol testing in the workplace is justified once the employer establishes the workplace operations to be inherently dangerous, thereby eliminating the need to adduce evidence of an alcohol problem in the workplace. Having justified the adoption of the alcohol testing policy, its reasonableness will be confirmed, provided the testing is done by breathalyser and applies only to those employees who hold safety sensitive positions. This is the point in time where the employer’s and employees’ rights are reasonably balanced.

The Court of Appeal first decided that whether a random alcohol testing policy reasonably balances an employer’s legitimate interest and obligation to provide a safe workplace, with the employees’ privacy and dignity interest (and in some instances, freedom from discrimination), is a question of general importance in the law. Therefore, the Court rejected the positions of both the employer and the union, and the decision of the Court of Queen’s Bench, that the Board’s decision need only be reasonable; rather, it had to be correct. Thus, the Court did not have to give the Board’s decision any deference.

The Court of Appeal next agreed with the Queen’s Bench Court, and rejected the Board’s creation of an “ultra-dangerous” category of workplace, finding there is no such concept. The Court of Appeal further agreed that in an inherently dangerous workplace, the employer is not required to prove an existing alcohol problem in the workplace to justify random alcohol testing.

Finally, the Court expressly held that mandatory random alcohol testing in the workplace is justified once the employer establishes the workplace operations to be inherently dangerous, and the policy is reasonable if it is done by breathalyser and only applies to those employees holding safety sensitive positions.

The Court of Appeal looked at the employer’s workplace – a kraft mill – and agreed it is inherently dangerous: it uses hazardous materials and liquids that are unloaded from rail cars, and other types of transport on site, and it has a $350 million pressure boiler with a high potential for explosion, the consequences of which would cause concern for any environmentalist. The Court of Appeal concluded this inherently dangerous environment is sufficient to justify the employer’s introduction of the random alcohol testing policy. The Court found the form of testing, by way of breathalyser, and the restriction of the random testing to employees in safety sensitive positions, made the employer’s policy reasonable. The Court of Appeal upheld the employer’s policy of mandatory random alcohol testing of employees in safety sensitive positions.

Since the original decision was that of an Arbitration Board, the recourse available to the unsuccessful party – in this case, the employer – was for the Court of Queen’s Bench to review the Board’s decision under the judicial review process, rather than an appeal. The judicial review process entails the Court’s review of the Board’s decision against a standard determined by the nature of the issue: if it is a factual issue or an issue of mixed fact and law, then the Court will give the Board’s decision a degree of deference and uphold it if it is merely “reasonable”, even if the reviewing Court would have reached a different conclusion. However, if the issue is a purely legal one, then the Court will only uphold the Board’s decision if it was “correct”, a higher and more demanding standard.

The Court of Appeal spent considerable time on the standard against which the Board’s decision was to be reviewed. The Court of Appeal decided the question involved issues of human rights and privacy, in which arbitrators have no particular expertise, suggesting that there was no reason to give the Board’s decision any deference. The Court found the most important reason to apply the correctness standard, however, is the inconsistency in arbitration decisions on random alcohol testing; it fell upon the Court to provide a definitive answer as far as New Brunswick is concerned. This made it a question of general importance in the law, and thus the “correctness” standard applies. It is of some note that in deciding this point, the Court of Appeal was clear it was not bound by the mere fact that the parties agreed – and the Queen’s Bench Court found – that reasonableness was the applicable standard.

It is also notable that both the Court of Queen’s Bench and the Court of Appeal limited their decisions to an analysis of random alcohol testing, making it clear their decisions do not extend to random drug testing. In its decision, the Court of Appeal commented on the key differences between alcohol and drug testing: the inability of drug testing to detect present impairment, and the more intrusive methods of testing required to test for drugs, compared to the ability of alcohol testing to detect present impairment, and the minimally intrusive nature of the breathalyser as a testing method. Accordingly, the Court of Appeal has left open the issue of when random drug testing is appropriate, even in the case of safety sensitive positions in an inherently dangerous workplace.

Nevertheless, this decision is a watershed one on mandatory random alcohol testing. Before it, whether and when random alcohol testing was permitted in New Brunswick was uncertain. Now, the Court of Appeal has clearly ruled that employers can require such testing, and directs the focus in future inquiries to the factual issues of whether the workplace is “inherently dangerous”, the positions tested are “safety sensitive”, and the testing method is minimally intrusive and can detect present impairment.

The union has indicated it is reviewing the decision to decide whether to proceed further; the union’s only remaining recourse is to the Supreme Court of Canada, a process that requires it to overcome the initial hurdle of persuading the Supreme Court to hear a further appeal at all.